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Wednesday, December 13, 2017

Red Arch Cultural Heritage Law & Policy Research and the University of Pennsylvania’s Penn Vet Working Dog Center, in collaboration with the Penn Museum (University of Pennsylvania Museum of Archaeology and Anthropology), have launched the K-9 Artifact Finders research program. The project aims to fight cultural heritage crime with the help of working dogs.“We must stop the crime of transnational antiquities trafficking,” says CHL's Rick St. Hilaire, founder and executive director of Red Arch Research. “And dogs may be the right law enforcement partner to get the job done,” adds Dr. Lou Ferland, retired police chief and head of The United States Police Canine Association, who serves as an advisor to the K-9 Artifact Finders project.Dr. Cynthia Otto is the executive director and principal researcher at Penn Vet’s Working Dog Center, an international leader in working dog research. Otto has trained many dogs for law enforcement, search and rescue, and medical detection. “The kind of canine training we will undertake for K-9 Artifact Finders is unprecedented. We think it is innovative and doable.”Phase I of the study will focus dogs on sniffing for objects from the Fertile Crescent region of modern-day Iraq and Syria, a prime target for cultural heritage looting, in order to find specific target odors. Finding scents linked to illegally looted artifacts could equip customs officers with an advanced tool to help apprehend heritage traffickers and their smuggled cultural property packages at airports and cargo facilities. If successful, additional funding will be sought for on-the-ground testing (Phase II) and, later, for a demonstration program for customs officials in the United States and abroad (Phase III).“Terrorists, organized crime, and common criminals are destroying archaeological sites on an industrial scale to cash-in on illegal profits,” warns archaeologist Dr. Michael Danti, a principal consultant. “That is why we need to find out if we can train dogs to help.” Danti, who received his PhD in Anthropology from the University of Pennsylvania in 2000, is a Penn Museum Consulting Scholar.Retired Homeland Security customs officer Domenic DiGiovanni agrees. “Smugglers import stolen heritage into the U.S. by hiding them in packages and crates. Using canines to sniff out illegally dug-up artifacts would help customs officers quickly identify smuggling suspects, who usually falsify import forms when they traffic artifacts, which is a felony.”Project consultant Peter Herdrich of Cultural Capital Group, LLC notes that this crime is big and spreading. “We now face the daunting task of unscrupulous dealers mailing more and smaller cultural artifacts into the country as a result of growing on-line antiquities and ancient coin sales.”Find out more at www.redarchresearch.org/News-and-Media.html.

Can American victims of terrorism seize and sell ancient Persian antiquities located at the University of Chicago to satisfy a court judgment against Iran? That's the question the United States Supreme Court considered on Monday in the case of Rubin v. Islamic Republic of Iran, a case examining the mechanics of the Foreign Sovereign Immunities Act (FSIA).

Foreign
countries generally are immune from lawsuits filed in American courts. But the FSIA outlines exceptions to this rule, including a terrorism
exception codified at 28 U.S. Code § 1605A. Congress penned this section in 2008 to allow plaintiffs to sue designated state sponsors of terror that caused injury, harm, or death.To satisfy a civil
judgment won in a 1605A terrorism case, a victorious plaintiff would seek out the foreign nation's assets under § 1610(g)(2), which allows the plaintiff to take control of “[a]ny property
of a foreignstate, or agency or instrumentality of a
foreign state….”

But are the assets that can be attached to execute the court judgment limited to those that are "used for a commercial
activity" as specified by § 1610(a)? Or can the assets be any kind whatsoever, including antiquities housed at a museum? That was the topic of oral argument in the Rubin case.

Rubin pits American victims of a Jerusalem suicide bombing against the country of Iran, a country designated by the US government as a state-sponsor of terror. Hamas claimed responsibility for the Iranian sponsored attack in 1997, and a federal district court in
Washington, DC in 2003 awarded the plaintiffs $71.5 million in a default judgment,
holding Iran culpable. Read about the lengthy and complex case history here.

Since then, the plaintiffs/petitioners have tried to secure their award through the attachment process by taking control of ancient Iranian artifacts located in a variety of American cultural institutions, including the Persepolis and Chogha Mish antiquities collections, excavated during the 1930's and 1960's and housed in the University of Chicago’s Oriental Institute through a long-term academic loan.

Attorney Asher Perlin, on behalf of the terror victims, told the supreme court justices that the plaintiffs/petitioners could attach and execute these artifacts without having to assess whether the property was part of the commercial activity of Iran, explaining:

ATTORNEY PERLIN: In 2008, Congress comprehensively overhauled the terrorism exception to foreign sovereign immunity to close gaps that had for years allowed foreign terrorist states to thumb their noses at U.S. judgments finding them liable for acts of terrorism while their victims were drawn into a long, bitter, and often futile search for scarce assets that would be subject to execution under the exceedingly narrow commercial exception to foreign sovereign immunity.

The centerpiece of that legislation is Section 1610(g). That provision provides that American terrorism victims can execute their judgments upon the property of a foreign state that is subject -- against which a -- a judgment has been entered under 1605A, and it makes available the property of the state's agencies and instrumentalities.

JUSTICE STEPHEN BREYER: Can they execute, your clients, on the embassy?

ATTORNEY PERLIN: Congress, when they enacted 1610(g), they did not completely abrogate foreign sovereign immunity for terrorist states. They wanted to provide a remedy for the victims, they wanted to punish and deter the terrorist states, but at the same time, Congress recognized that Iran and North Korea, Syria, Sudan, these are sovereign states, and they're entitled to a bare minimum of sovereign immunity, and Congress retained that bare minimum by protecting quintessentially sovereign assets while making everything else subject to execution....The provisions that allow execution upon the property of an agency or instrumentality gives access to -- to the agency or instrumentality's property.

JUSTICE BREYER: Well, give an example. I mean, there's a famous example which you know about, the -- the letter of Cyrus, saying to everybody throughout the Middle East that the Jews are free and they can go back to Israel, Palestine, the temple, and that letter exists and Persia -- the Persian letter, and Iran has sent it around the world.

Now, in your view, they have -- and people have looked at it. And if it comes to the United States, you can seize it. Is that -- that's your view of it? Because if it is, of course, if Congress knew about it, then they -- they might have had a general idea, given the nature of the stuff in Chicago. I -- I would be surprised that they'd want to do that.

ATTORNEY PERLIN: You might be surprised, but Congress has addressed -

JUSTICE BREYER: Your view is, yes, you could seize it?

ATTORNEY PERLIN: It would depend on - yes, you could. It -- Congress has addressed this very question, twice, in 22 U.S.C. 2459 [the Immunity from Judicial Seizure Act], Congress provided a very specific and limited immunity for culturally significant objects being brought to the United -- culturally significant objects being brought to the United States for display or exhibition.

There was a very specific immunity there that the -- that somebody wants to bring in -- in that property, those exhibits can apply to the State Department in advance and receive a letter immunizing those -- those assets from -- from judicial process....JUSTICE RUTH BADER GINSBURG: Did that -- did that exist in, what was it, 1939 -

ATTORNEY PERLIN: It did not. It did not.JUSTICE GINSBURG: -- when Chicago got this?ATTORNEY PERLIN: But Congress could have made that provision retroactive, and it didn't....JUSTICE GINSBURG: The University is not interested in this property for the money -- for money. It's interested in having these antiquities on display, to be researched, to be seen?

ATTORNEY PERLIN: But it doesn't belong to them. It's not theirs. And whoever it belongs to can decide whether they're the best university to study it....JUSTICE GINSBURG: But what would [the property rights of the University of Chicago] be? Their rights have been from 1939 on, they have this property.

ATTORNEY PERLIN: Well, since 1980, they've had the property because Iran couldn't get it back, for a big part of that time, and for a big part of the time before that, every now and then, Iran was asking, when are you going to finish -- when are you going to finish studying these things. And -- and they were not very forthcoming.

When this lawsuit was filed, they moved into -- they expedited their study of the assets because they realized that they might lose them. And, now, again, University of Chicago is really an amicus here. They don't -- they have no interest in these assets.

They -- and to the extent that they do, the Court can protect that. It can protect that interest in a -- in a sale....

CHIEF JUSTICE JOHN ROBERTS: Well, assuming you're right, does that mean, if you lose here, you think Iran will be able to repatriate the assets?

ATTORNEY PERLIN: Absolutely. There's nothing in their way. They did. They did. We lost -- we lost in the district court, and there was another collection of Iran - Iran-owned assets, and on the eve of the -- the argument in the court of appeals, they were shipped back to Iran after the court had denied our -- our motion to stay, but -- but they were shipped back to Iran.

...

JUSTICE BREYER: They have other things in the United States. I mean, it seems to me so far, that the main difference between your interpretation and the other side as a practical matter is that, if you're right, that private people will be able to take cultural assets from Persia and sell them and ship them back to Iran, and if they're right, you will have to limit your recovery to commercial objects .......

ATTORNEY PERLIN: ... My clients have been waiting 20 years to enforce their judgment against Iran. Iran does not pay judgments....Congress said enough is enough. We want these judgments enforced. And it's not about antiquities. That's -- that's -- that's what the Respondents are writing about....
Following Attorney Perlin's colloquy with the court, Attorney David Strauss, on behalf of the respondent University of Chicago, said that the property of a foreign nation had to be used for a commercial activity in order for the plaintiffs/petitioners to get it:

ATTORNEY STRAUSS: The Foreign Sovereign Immunities Act says, in Section 1609, that the property of foreign states in the US shall be immune from attachment, except as provided in 1610.

Then the subsections of 1610 say, in terms, one after another, that certain property shall not be immune. Subsection (a) says that, as does (b), as does (d), as does (e). Subsection (g) contains no such language. The relevant part of subsection (g) does not refer to immunity at all....The Petitioners' position really would nullify a decision Congress made at the very same time it enacted 1610(g) in 2008. ... The -- the statute that added subsection (g) also created 1605, the cause of action that -- the remedy the Petitioners invoke. That statute then amended the FSIA to say that parties like Petitioners, who are seeking to execute a 1605A judgment, must show that the property they want to seize is used for commercial activity of the United States. That same statute said that. It said that by inserting 1605A into subsection A, which is a subsection that requires commercial activity. So Congress did that. It created 1605 - 1605A.

Representing the United States government, and awkwardly supporting Iran’s position in this unusual case, was Assistant to the Solicitor General Zachary Tripp. Attorney Tripp firmly declared America's opposition to terrorism and condemned Iran’s sponsorship of violence, but he made clear that the federal government is just as concerned with how American property overseas is treated. He told the court:

ATTORNEY TRIPP: These ancient Persian artifacts are immune from execution under 1609, and nothing in 1610(g) lifts that immunity....

And then the last thing I'd just like to mention here is about the United States' competing interests in this case. I mean, obviously, we have a very strong interest in combatting state-sponsored terrorism. We also have concerns in these cases about the reciprocal -- reciprocal treatment of our own property abroad. And I think, particularly in light of those concerns which are quite weighty, if Congress was really going to take the step of allowing execution against property of a cultural and historic significance to another country and its people, that would be a big deal and it would not be the kind of thing you would expect to see buried in a conforming amendment without remark.

Tuesday, November 21, 2017

The Cultural Heritage Coordinating Committee (CHCC) is "the principal body for coordination and implementation of cultural heritage protection and preservation initiatives across the U.S. government." That's how the U.S. State Department characterized the CHCC at a G-7 cultural ministers summit in March. Yet Congress' independent watchdog, the General Accountability Office (GAO), finds that the CHCC lacks goals and has failed to clarify participants' roles.The CHCC is the federal interagency committee set up last year when Congress authorized import restrictions on at-risk cultural property from war-torn Syria. Signed into law by the president in May 2016, the bipartisan backed Protect and Preserve International Cultural Property Act suggested the creation of a cultural property coordinating committee, which lawmakers found to be an acceptable alternative after Congress failed to create a cultural property czar.

Congress fashioned the CHCC as a voluntary executive branch interagency committee, chaired by a State Department employee with the rank of assistant secretary or higher, and populated with representatives from "the Smithsonian Institution and Federal agencies with responsibility for the preservation and protection of international cultural property," according to the terms of the International Cultural Property Act.

Congress envisioned that the coordinating committee would "consult with governmental and nongovernmental organizations, including the United States Committee of the Blue Shield, museums, educational institutions, and research institutions, and participants in the international art and cultural property market on efforts to protect and preserve international cultural property."

The CHCC was urged to focus on four tasks that would "coordinate core U.S. interests in—

(A) protecting and preserving international cultural property;

(B) preventing and disrupting looting and illegal trade and trafficking in international cultural property, particularly exchanges that provide revenue to terrorist and criminal organizations;

(C) protecting sites of cultural and archaeological significance; and

(D) providing for the lawful exchange of international cultural property."

To learn more about the coordinating committee's agenda and membership, CHL filed a Freedom of Information Act request last year. The State Department recently replied that it would fulfill this request by February 28, 2018. In the meantime--and what's better--auditors at the GAO completed their own report.Published in September and titled Iraqi and Syrian Cultural Property: U.S. Government Committee Should Incorporate Additional Collaboration Practices, the GAO report describes some positive attributes of the coordinating committee, observing that the CHCC "has followed key practices of identifying leadership; including relevant participants; bridging organizational cultures, such as agreeing on common terminology; and addressing resource issues. Most participants also reported that the CHCC was a helpful forum for sharing information."But the GAO report also states pointedly that "we found that there was no consensus and no clear delineation of the specific roles and responsibilities of the entities on the CHCC and its working groups." The agency's examiners write that "representatives of one entity leading a working group described their role in initiating working group meetings, and planning and circulating meeting agendas. However, most CHCC participants said that they are unclear about their specific roles and responsibilities for CHCC, including [the Department of Defense] and [the U.S. Agency for International Development], whose representatives on the CHCC were unable to describe their roles and responsibilities on the full committee and its working groups."

The State Department says that it intends to fix these problems, according to the GAO. The CHCC officially met for the first time on November 4, 2016, following an informal gathering in June 2016. According to the GAO report, in attendance at the November 2016 meeting were unidentified representatives from State, the Department of Homeland Security (Homeland Security), the Department of Justice (Justice), the Department of the Treasury (Treasury), the Department of Defense (Defense), the Department of Interior (Interior), the U.S. Agency for International Development (USAID), the National Endowment for the Humanities (NEH), and the Smithsonian Institution (Smithsonian). CHCC members met again in March and June 2017.GAO examiners write in their report, "For the first CHCC meeting in November 2016, State invited nine federal entities to participate and requested that these participants volunteer for the working groups. Representatives of these nine federal entities all attended and, with the exception of USAID, have attended at least one additional meeting since the committee’s inception." Regarding USAID's future participation, "In July 2017, a USAID official informed us that USAID does not expect to participate in the CHCC."The GAO report identifies three concrete problems faced by the coordinating committee. "First, the CHCC and two of its three working groups have not developed short- and long-term goals." Second, "the CHCC has not clarified participants’ roles and responsibilities on the committee or its working groups." Lastly, the report finds that "CHCC participants have not documented agreements related to collaboration, such as developing written materials to articulate common objectives," commenting that doing so "could help participants work collectively, focus on common goals, and organize joint and individual efforts to protect cultural property...." The GAO's auditors more fully explain:

In the first formal meeting in November 2016, the chair of the committee articulated that the CHCC’s role was to coordinate antitrafficking efforts and to tackle a wide range of cultural heritage challenges worldwide. However, subsequent to that meeting, the CHCC has not produced documents identifying specific CHCC outcomes or goals. CHCC participants also indicated that no clear consensus on the CHCC’s stated goals has emerged from CHCC meetings. Many CHCC participants noted that the CHCC had not developed short-term and longterm goals, with some adding that the CHCC was working on doing so. Other officials had different views of the short-term and long-term goals. For example, one participant stated that a short-term CHCC goal was to establish working groups and understand the roles of the different entities, while another participant said that a long-term goal was to solidify information sharing among participants.

The GAO's critique of the CHCC might explain why Treasury, Defense, and USAID have not been active participants in the working groups. The auditors describe how these agencies "stated that they did not volunteer for and have not participated in the new working groups because they did not clearly see how their entities could contribute to the topics of focus." In fact, "most CHCC participants said that they are unclear about their specific roles and responsibilities for CHCC," according to the GAO report.In 2016, the CHCC established two working groups, one called Technology and one called Partnerships and Public Awareness. The coordinating committee also absorbed the existing intergovernmental Cultural Antiquities Task Force (CATF), transforming it into a third working group under CHCC's umbrella.The Technology working group reviews the "application of new and existing technologies to combat cultural property trafficking," explains the GAO report, and the working group is chaired by someone at the FBI, part of the Department of Justice. Other members, all unidentified by the GAO report, include representatives from State, Homeland Security, Interior, NEH, and the Smithsonian. The group met in February and May 2017.The Partnerships and Public Awareness working group, meanwhile, "focuses on public outreach and public-private partnership." It too met in February and May 2017 and is chaired by an unidentified representative from the Smithsonian and includes unknown persons from State, Homeland Security, Justice, Interior, and NEH.The GAO notes that the Partnerships and Public Awareness working group's May meeting included participation from the National Endowment for the Arts, the National Archives and Records Administration, and the President’s Committee on the Arts and Humanities. "According to Smithsonian officials, the Smithsonian also invited the Library of Congress, the Institute of Museum and Library Services, the National Science Foundation, DOD’s National Defense University, and the Wilson Center to participate ...." However, the GAO observes that "the CHCC has not clarified the roles and responsibilities of the additional federal entities ... including whether these entities would be members of the full committee or participants of only one CHCC working group," adding that the "CHCC full committee meeting in June 2017 did not include these additional federal entities as invitees."CATF, an established stand-alone task force operating since 2004, is CHCC's third working group. It "focuses on efforts to support local governments, museums, preservationists, and law enforcement to protect, recover, and restore cultural antiquities and sites worldwide, particularly in Iraq and Afghanistan," according to the GAO. In the past, CATF worked with and funded activities supporting Justice, INTERPOL-US National Central Bureau, FBI, and Homeland Security to battle antiquities trafficking.CATF met in June 2016 and again in June 2017. It is chaired by State and has members from Homeland Security, Justice, Defense, Interior, and Treasury's Internal Revenue Service. Of significance,"State officials explained that [Defense] had been invited to CATF meetings in the past but had not participated extensively," the GAO report indicates, and "[a]ccording to the [Defense] representative on the CHCC, [Defense] had not participated in the CATF in years but attended the CATF meeting in June 2017," which was hosted by the Criminal Division at Justice.

A recent legislative measure that would spur greater CHCC participation by Defense is H.R. 2810, the National Defense Authorization Act, adopted by the House of Representatives on November 17. It instructs the Secretary of Defense "to designate an employee of the Department of Defense to serve concurrently as the Coordinator for Cultural Heritage Protection" and requires the Coordinator to be responsible for "coordinating with the Cultural Heritage Coordinating Committee convened by the Secretary of State for the national security interests of the United States, as appropriate."GAO conducted its audit of the CHCC by reviewing "meeting agendas, lists of invitees and attendees, and meeting notes for the CHCC and its working groups produced between November 2016 and June 2017, as well as "working documents resulting from the committee and its working groups." The auditors also interviewed "U.S. federal entities that participated in the CHCC’s first meeting in November 2016."Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. Visit www.redarchresearch.org.

Monday, November 6, 2017

State attorneys general should address the ballooning scam of criminals using the art and antiquities marketplace to sell faked, forged, looted, stolen, and smuggled cultural property. This hijacking of the trade presents a widespread consumer protection problem that demands a concerted law enforcement response.Private collectors and museums benefit from an artifacts trade that operates in a free market, providing an opportunity for stewardship of cultural treasures. Honest dealers, auction houses, and collectors should work together to protect the marketplace from criminal activity. But when fraudsters, fences, and hustlers regularly pollute the stream of commerce with fake artifacts, blood antiquities, and contraband cultural heritage that fail to be uncovered by industry due diligence (or the lack thereof), then public enforcement officials need to shore up the integrity of the marketplace so that it is not overrun by an illegal shadow economy, which fuels money laundering, terror financing, and other major crimes.The US is the largest art and antiquities market in the world, and Wall Street Journal reporter Georgi Kantchev on Wednesday described how crooks use e-commerce to sell illicit antiquities to unsuspecting buyers.In July, Oxford senior research fellow Dr. Neil Brodie published an Antiquities Coalition think tank paper specifically highlighting this risky internet trade, warning:

While an internet shopper may indeed be purchasing a real antiquity that was scientifically excavated in accordance with national law, and left its country of origin with a valid export permit, the odds are much greater of purchasing a trafficked or fake object. [B]uyers also risk the possibility of unintentionally supporting the organized criminals, armed insurgents, and violent extremist organizations who are known to deal in antiquities.

Syrian archaeologist Dr. Amr al-Azm, who spoke at last month's conference on Preserving Cultural Heritage in Times of Conflict, showed screen shots (seen here) of a mobile phone application being used to sell an ancient mosaic and cylinder seals, saying "This is an example of how some of this stuff gets traded." "We get these messages going on back and forth all the time."

The sale of faked and trafficked cultural objects is big, requiring probing scrutiny and direct intervention by top prosecutors. "On any given day there are at least 10,000 antiquities and ancient coins for sale online, with an estimated total asking price of over $10 million," Dr. Brodie's paper reports. That is why CHL renews its call for consumer protection action by state attorneys general.The National Association of Attorneys General's standing committee on consumer protection, headed by AG Peter Kilmartin of Rhode Island and AG Doug Peterson of Nebraska, should undertake the task of the "development of effective consumer protection programs and education for the protection of citizens and increasing consumer awareness" (in line with the NAAG's mission statement) in order to stop the sale of fraudulent and illegal cultural artifacts. Each year the NAAG holds its spring consumer protection meeting in Washington, DC, presenting an ideal opportunity to start developing a coordinated solution to tackle this urgent problem. Its next meeting is scheduled for May 2018.Consumer protection laws are designed to uncover deceptive, unfair,
unconscionable, and unlawful business practices. The states' top prosecutors wield civil and criminal tools authorized by consumer protection statutes to investigate wrongdoing in the marketplace. In New York, for example, the heart of America's antiquities
market, General Business Law § 349(a) forbids "[d]eceptive
acts or practices in the conduct of any business, trade or commerce or in the
furnishing of any service in this state," and Executive Law §
63(12) gives the attorney general power to investigate and issue
subpoenas.

Attorneys general may commence legal action on behalf of affected consumers.With this authority, AGs across the country should open investigations to unveil unlawful sales and deceptive businesses practices taking place in the cultural property marketplace.

From the looters shovel to the auction gavel, large scale cultural property theft and destruction occur during times of instability. That is how Dr. Michael Danti framed the discussion for last week's conference titled Preserving Cultural Heritage in Times of Conflict, sponsored by Colgate University and the Penn Museum–Near Eastern Section.

Danti is a classics professor at Colgate, a consulting scholar with the University of Pennsylvania Museum, and an archaeologist with expertise in the destruction of cultural heritage in Iraq and Syria. He described the current wave of cultural property crime from conflict zones as "voracious."

Conference organizers Dr. Michael Danti and Dr. Carolyn Guile

Danti and Dr. Carolyn Guile organized the conference to answer questions about what threatens cultural property today, what can be done to protect cultural heritage during wartime, and what lessons can past conflicts teach.

Guile, an associate professor of art history at Colgate University, called attention to deliberate cultural cleansing, which is reflected by contemporary heritage destruction. Today's level of harm to cultural property, not seen since World War II she noted, warrants a serious look into heritage preservation.

Guile's words echoed observations made by keynote lecturer Robert Edsel, author of the best-selling book, The Monuments Men: Allied Heroes, Nazi Thieves and the Greatest Treasure Hunt in History and founder of the Monuments Men Foundation. Edsel pointed out that advance planning when armed conflict breaks out is a valuable lesson taught by General Dwight Eisenhower's Monuments Men during the Second World War, which is important because the destruction of heritage is a precursor to the destruction of peoples.

[Sidebar: A United Nations (UN) report published in 2015 signaled the annihilation of cultural and religious heritage as a feature
of genocide, crimes against humanity, and war crimes.]

In the modern era, special challenges to cultural heritage protection are posed by the nature of the art trade, the "largest lawful unregulated business" in the world, Danti remarked. The art market is robust, and thieves middle men, and complicit experts take advantage of it, he said. Danti stated that the good news today is that "collectors may be aware that their purchases may be related to terrorism and other activity." That is why purchases have declined since 2014. The bad news, he warned, is that most of today's conflict antiquities looted from the Middle East won't hit the market for maybe five or ten years. That is because mass cultural property crime take decades to address.

Danti called attention to Article 27 of the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948 following WWII. "Everyone has the right freely to participate in the cultural life of the community," the UDHR document recites. Terror groups, "ISIS, and extremists," by contrast, "represent the antithesis of cultural heritage protection," Danti reflected.

AHMP satellite imagery depicting over 2,000 looted sites in the Balk region of Afghanistan, as shown by Emily Bloak.

Emily Bloak, part of the University of Chicago's Afghan Heritage Mapping Partnership (AHMP), monitors threats to cultural heritage in some of the world' most volatile regions. "In both conflict areas [Syria/Iraq and Afghanistan], looted antiquities are believed to fund terrorism," she reported, adding that major threats to cultural heritage in Afghanistan currently are mining, development, and agriculture, particularly related to opium production.

Looting is a large threat in Afghanistan and "only one aspect of a larger, complex relationship...," Bloak observed. Mining is a problem that threatens cultural heritage, such as at Mes Aynak. Energy development, like the proposed Turkmenistan–Afghanistan–Pakistan–India (TAPI) natural gas pipeline, also poses a risk, she remarked.

When asked about arrests in Afghanistan for those who destroy cultural property, Bloak said that there were none as this was not "something that is monitored at all."

Syrian archaeologist Dr. Amr al-Azm, associate professor at Shawnee State University, drew attention to the importance of Syrian cultural heritage and the importance of non-state actors to preserve it. Syria has six world heritage sites, and al-Azm related that every Syrian lives on top of an archaeological site, near a site, or within a stone's throw of a site.

Archaeological site looting in Apamea, 2012.

Why is cultural heritage protection important in Syria? "People without their history, their culture, are lost. They are basically disconnected," al-Azm explained. There is no binary, no one or another, when choosing between saving cultural heritage or people in wartime, al-Azm argued. You focus on the humanitarian, "not stones." But "this cultural heritage is important to people on both sides of the conflict," meaning that the shared heritage of the Syrian people, no matter what side of the conflict they are on, will help people "reconnect" when the war ends. "Saving this history ... is about saving the future of Syria too."

Dr. al-Azm listed some of Syria's significant cultural heritage losses, including Krak de Chevalier, saying "it's pretty badly damaged, and St Simeon, which was damaged by air strikes.

Apamea, meanwhile, has suffered significant looting. The photo at top right, shown by al-Azm, depicts numerous looters pits that emerged over the Syrian archaeological site starting in 2012, and they have spread out since that time, he said. Compare the pockmarked site in 2012 with the image at left showing the same site in 2011.

Dr. al-Azm declared that the looting and sale of antiquities by ISIS was "very, very lucrative." The terror group didn't start it, but they institutionalized and industrialized the process, he contended. They were "involved at every stage," from looting to sale.

Oil refineries, meanwhile, have been moved on top of archaeological sites in the hope that their new locations might afford some protection against bombing.

Additionally, al-Azm reported that coin collections offered for sale in Syria are "ubiquitous," with the trade in illicit antiquities taking place on mobile phone platforms like WhatsApp.

Heritage management specialist Dr. Allison Cuneo of Cultural Property Consultants instructed that intentional destruction of religious monuments by ISIS in Syria and northern Iraq have caused noticeable damage. Cuneo displayed pie charts, shown at left, illustrating that 24% of ancient, 22% of Christian, and 13% of Yezidi monuments and sites have suffered the greatest number of attacks.

Building on both the current reports from the Middle East and Edsel's presentation about how cultural protection efforts in past wars could help tackle current challenges, historian Dr. John Radzilowski of the University of Alaska spoke about the moral and legal claims to looted cultural property in East Central Europe after 1945, and Boston University professor of archaeology Dr. Ricardo Elia added fresh information from new research on the Japanese appropriation of cultural heritage during the War in the Pacific, which resulted in the return of thousands of books by the Supreme Commander for the Allied Powers (SCAP) to allied countries after World War II.

Going beyond the armed conflicts of the 1940's, lawyer and archaeologist Tess Davis, executive director of the Antiquities Coalition highlighted lessons learned from Cambodia, where severe cultural property looting lasted from 1970 through 1998. Cultural cleansing in the Killing Fields by the Khmer Rouge included devastation suffered by 73 Catholic Churches, 130 cham mosques, and 3369 Buddhist temples, all while the Khmer Rouge held a seat at the UN. She noted that heritage protection was not part of UN peacekeepers' mandate in Cambodia.

Reclamation by the Cambodian people in recent years of looted cultural property--specifically ancient statues housed both in American museums and offered for sale at a New York auction house--has been a bright spot set against the backdrop of an otherwise dark past, Davis told conference attendees.

She called on nations to join relevant international agreements on cultural property protection, to close borders to close to undocumented cultural objects from countries in crisis, and for international legal scholars to "develop a framework for filling gaps in the chain of title for cultural objects caused by armed conflict, regime changes, or other crises."

Image of an object found on Abu Sayyaf's WhatsAppthat is subject to a current federal forfeiture complaint.

A federal forfeiture lawsuit initiated the return of a Duryodhana and other statues to Cambodia. Now a new kind of forfeiture case is winding its way through the American court system. CHL's author informed conference participants that the case is innovative because it applies the USA PATRIOT Act to claim ownership of ISIS (aka ISIL) cultural property, ensuring that these conflict artifacts will not circulate in the marketplace and generate blood income. Unlike typical forfeiture cases that support the Department of Homeland Security's much criticized "seize and send" policy--a policy that seizes illegally trafficked artifacts and then sends them to their countries of origin after publicized law enforcement repatriation ceremonies, but without criminal prosecutions of the wrongdoers--this new forfeiture case aims to give legal support to the military's prosecution of a war that aims to take down a terror group.

The case bears the name United States of America v. One Gold Ring with
Carved Gemstone, An Asset of ISIL Discovered on Electronic Media of Abu Sayyaf,
President of ISIL Antiquities Department et al. It started with a US Delta Force raid on a Syrian compound occupied by Abu Sayyaf, identified by discovered documents as ISIS's minister of antiquities. About 700 cultural artifacts were found during the raid and repatriated. Four cultural heritage objects, depicted on electronic media recovered from the raid, are the subject of the forfeiture case. In their court complaint, federal prosecutors allege, "Abu Sayyaf’s electronic media had multiple photographs of other antiquities. These photographs were staged in a manner consistent with the sale of antiquities.” They attorneys argue that they "are forfeitable as foreign assets of ISIL ... as ISIL has and is engaged in planning and perpetrating federal crimes of terrorism . . . .“

Dr. Brian Brown

Shifting attention from the judicial to the executive branch, Dr. Brian Brown, a private cultural property consultant and a former cultural heritage analyst with the US State Department, outlined policy reforms that he supports. They include

allowing import restrictions covering at-risk transnational cultural property under the Convention on Cultural Property Implementation Act (CPIA) to last longer than five years;

including explicit penalties, particularly fines, for violations of the CPIA, just like the Lacey Act, which protects endangered wildlife;

requiring export certificates, not affidavits, to support the lawful entry of CPIA imports;

having the State Department impose emergency import protection controls when needed to quickly safeguard cultural objects in jeopardy of looting;

assigning a specific Department of Defense office as a single point of contact on cultural heritage matters during armed conflicts; and

devoting more resources to the State Department, the Department of Homeland Security (DHS), and other agencies to shore up cultural heritage protection. Brown said that DHS only has one person overseeing its Cultural Property Art and Antiquities Investigations, that only three people at the State Department administer 16 CPIA treaties, and that "all relevant offices are severely understaffed."

Special Agent Christopher McKeogh, an art and antiquities crime specialist with the FBI's New York field office, was the conference's final speaker.

"We get a lot of requests for repatriation of cultural assets." But "recovered items rarely lead to prosecution of subjects." The trail is cold, he said.

He explained that his agency's goals are to identify networks of looters, their routes, and methods of object removal from countries of origin; to uncover long-term storage locations; to identify end-users and collectors; and to recover illicit cultural heritage objects.

McKeough noted that smuggled cultural property frequently is misidentified as antiques, pottery, and handicrafts on customs forms, and he revealed that looted items often are hidden in larger shipments.

The agent highlighted the connection between antiquities crime and money laundering, which is why it is important for authorities to follow the money, to compare documentation to known facts, and to investigate whether money laundering techniques (like the use of shell companies) are obscuring terrorist financing operations, he explained.

Some proactive measures to combat cultural heritage trafficking, McKeough suggested, include maintaining ties with foreign law enforcement, working closely with the FBI Counterterrorism Division, liaising with galleries and auction houses, monitoring internet sales and auctions, and fostering community outreach.

Conference discussions were lead by Dr. Richard Zettler of the Penn Museum-Near Eastern Section and by Colgate University professors Rebecca Ammerman, Robert Garland, Padma Kaimal, Xan Kam, Robert Kraynak, Elizabeth Marlowe. Additional sponsors of the conference included Colgate University's Office of the President, Center for Freedom and Western Civilization, Department of Classics, Department of Art and Art History, Global Engagements, University Studies. The conference took place took place on October 18-20, 2017.

Thursday, October 12, 2017

The United States will withdraw from the United Nations Educational Scientific and Cultural Organization, (UNESCO), effective December 31, 2018.Today's announcement comes as no surprise to cultural property watchers. The US Mission to the United Nations said in July that "[t]he United States is currently evaluating the appropriate level of its continued engagement at UNESCO," prompted by the UN cultural agency's decision "to designate the Old City of Hebron and the Tomb of the Patriarchs as part of Palestinian territory and a World Heritage site despite protests by the United States, Israel, and other countries," according to the US Mission.Nikki Haley, America's ambassador to the UN, remarked this past summer that UNESCO's vote was "tragic." "It undermines the trust that is needed for the Israeli-Palestinian peace process to be successful. And it further discredits an already highly questionable UN agency," she said.The longstanding tension between the US and UNESCO is described in CHL's 2013 blog post, No Money, No Vote: A Closer Look at the Strained Relationship Between the U.S. and UNESCO. The events it chronicles set the stage for today's notification by the US State Department to UNESCO Director-General Irina Bokova of its intent to set up an American permanent observer mission after officially withdrawing from the UN agency next year."This decision was not taken lightly," the State Department explained in a press statement. The decision "reflects U.S. concerns with mounting arrears at UNESCO, the need for fundamental reform in the organization, and continuing anti-Israel bias at UNESCO."Bokova responded with a public announcement "to express profound regret..." She touted her agency's achievements, naming six UNESCO goals that she said are "shared by the American people," including the advancement of literacy and education, the harnessing of technology, the enhancement of scientific cooperation, the promotion of freedom of expression, the empowerment of girls and women, and the bolstering of societies facing instability."Despite the withholding of [US] funding, since 2011, we have deepened the partnership between the United States and UNESCO, which has never been so meaningful," Bokova noted. "Together, we have worked to protect humanity’s shared cultural heritage in the face of terrorist attacks and to prevent violent extremism through education and media literacy." The director general proclaimed, "This is a loss to UNESCO. This is a loss to the United Nations family. This is a loss for multilateralism."Ambassador Haley issued a statement later in the day, agreeing that "[t]he purpose of UNESCO is a good one," but adding, "Unfortunately, its extreme politicization has become a chronic embarrassment." Haley pointed to the UN agency's retention of "Syrian dictator Bashar al-Assad on a UNESCO human rights committee even after his murderous crackdown on peaceful protestors."Today's State Department announcement comes at a time when UNESCO members sharply debate the selection of Bokova's replacement. Bokova has served as director general since 2009. Her term expires this year.

[UPDATE 10/13/17] UNESCO’s Executive Board on Friday, by a vote of 30 to 28, selected Audrey Azoulay to lead UNESCO. She is a former French culture minister. Her nomination will be brought before the UN agency's full membership, the General Conference, on November 10.Photo credit: Eric Ortner/freeimages.comText and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

2015 ABA Journal Blawg 100 Honoree

2014 ABA Journal Blawg 100 Honoree

2014 Daniel Webster International Lawyer of the Year award given to Rick St. Hilaire

"Rick St. Hilaire, who has become an authority on cultural heritage law, received the International Law Section’s 2014 Daniel Webster International Lawyer of the Year award at an Oct. 30 reception in Manchester, hosted by Sheehan Phinney Bass + Green." - NH Bar News, November 19, 2014

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